By the Court
Lumpkin, J.,delivering the opinion.
This was a proceeding under the Possessory Warrant Act of 1821, (Cobb 590,) at the instance of Sarah J. Waters against Americus "V. Mann, to get the possession of a family of negroes.
It appears that Mrs. Waters had been in the possession of these negroes, except for a short time, from the death of her husband in 1834, down to 1859. In January of this latter year, Mann bought the negroes at $1,400 00, and took a bill of sale to them from Mrs. Waters, agreeing to lot her retain possession for that year, with the privilege of redeeming them whenever she could pay for them. Some litigation sprung up between the parties relative to the possession of the slaves, when it was adjudged that Mrs. Waters was entitled to the possession of the property. She held the negroes till the first Monday in January thereafter, when they disappeared, and were found in the custody of Mann. No one knew how the change of possession took place. This proceeding is at the instance of Mrs. Waters, to repossess herself of the property; apprehending that the warrant, under which the litigation was had in the fall of 1859, would be used by Mrs. Waters, Mann moved to continue the case to some future day, in order to prove by Phillips, the sheriff, that the judgment rendered under the warrants only entitled Mrs. Waters to retain *223the slaves till the end of the year. The Court refused to postpone the case for that purpose, and this is the first error assigned.
Concede that the evidence could have been made, and would have been legal in the view we look upon the rights of these parties under the Act of 1821, the testimony would have been wholly immaterial. And I would remark, that Mr. Ballard and others abundantly established the fact, that the negroes were to be surrendered at the close of the year 1859. For the purposes of this decision, we assume that point to be satisfactorily proven.
The only effect of this proof is to raise the presumption that the present possession of Mr. Mann was by the consent of Mrs. Waters. But now comes in the evidence of Mr. Williams, that subsequently to all this, he, at the request of Mrs. Waters, and acting for her, called on Mr. Mann to tender him the purchase money and then redeem the negroes, which Mr. Mann refused to accept, alleging the negroes were worth three thousand dollars, thus rebutting effectually the inference that the negroes were voluntarily surrendered; and such, no doubt, was the view taken by Judge Cabaniss in the case.
We see no objection as to the mode in which the fall warrants of 1859 were proven. Indeed, independent of these warrants, the testimony is entirely sufficient and uncontradicted, that Mrs. Waters was entitled to the peaceable possession of these negroes till the end of the year 1859.
We see no reason for disturbing the judgment of the Court, but must remit the party to such other remedy, if any, as he may see fit to institute.
Judgment affirmed.